International Law Is Taiwan’s Enemy

Although protecting Taiwan is worthwhile, international law is not on Taipei’s side.

By Julian Ku for The Diplomat

July 16, 2014

[Thanks to Zachary Keck and the Diplomat for hosting this interesting and useful discussion of the legality of Taiwan’s defense by the U.S. and Japan. This post is an amended and longer version of a post first published on Opinio Juris].

So I managed to anger lots of folks (mostly on twitter) with my post Friday (republished in the Diplomat and RealClearWorld) on the international legal problems created by any Japanese intervention to defend Taiwan from an attack by China. I don’t mind angering people (especially on twitter), but I do want to make sure they are angry with me for the right reasons. For instance, many readers seem to think I want China to invade Taiwan, which is in fact the complete opposite of my policy goal. Others seem to think that making a legal argument that is against Taiwan’s interests is wrong or irresponsible.

So let me offer some clarifications of my position on policy, offer rebuttals of the legal responses to my arguments made by Michal Thim and others here, and finally conclude by explaining why I think it is valuable and important for Taiwan and Taiwan’s advocates to consider international law in the traditional and “black letter” way I am proposing here.

1) Policy: I am squarely in favor of U.S. military intervention to defend Taiwan against any PRC military attack. I am even in favor of intervention in the case of a declaration of independence by Taiwan as long as Taiwan acts in a responsible way so as not to threaten China’s national security. (My only hesitation on this is the cost to the U.S. of defending Taiwan, but not on the merits of Taiwan’s case). Given how strong China is these days, I am pretty sure Taiwan could not be a real military threat to China (nor would it want to be). Whether the U.S. would actually protect Taiwan is the zillion dollar policy question that I don’t have the answer to. I hope it does, but I don’t know if it will.

2) Law: However, my favored U.S. policy is in deep tension with, or even direct conflict with, traditional understandings of the international law governing the use of force. That is to say, my favored policy is in tension with the view of international law espoused by many other governments (and their international lawyers).

For those of us who love and cherish Taiwan, it is no use pretending as if the law authorizes a U.S. or Japanese military intervention to defend Taiwan. It doesn’t. It would be better for all concerned if we faced this legal problem head-on rather than trying to come up with complicated not-very-persuasive workarounds. Here are the two most obvious workarounds, raised in this very angry and excited post by Taiwan-expert J. Michael Cole as well as in the much more measured post here by Michael Thim. My take follows:

a) Responsibility to Protect and Humanitarian Intervention

Both Cole and Thim argue that the Responsibility to Protect and the doctrine of Humanitarian Intervention would justify other countries coming to Taiwan’s military defense against China.

Here is the problem: R2P are non-binding principles that, even if they were binding, seem to require Security Council consent (e.g. “If a State is manifestly failing to protect its populations, the international community must be prepared to take collective action to protect populations, in accordance with the Charter of the United Nations.”)

Humanitarian intervention remains deeply contested and doubtful in international law, and would not apply to Taiwan in any case until it was probably too late (e.g. after Taiwan was already decimated). Kosovo is a great example of how contested this doctrine is. Syria is another. Recall how Vladimir Putin (and the Chinese government) invoked international law to oppose intervention in Syria (and Kosovo). Even the U.S. has never really come up with a very robust legal defense of the Kosovo action.

The more relevant factual case for Taiwan is the invasion of Kuwait by Iraq in 1990. Note that in that case, the U.S. sought (and received) support from the UN Security Council, even though all it was doing was intervening to defend an unquestionably sovereign state (Kuwait). Many international law scholars believed such Security Council authorization was indeed necessary, just as many insisted it was necessary in the later Iraq war (which got no authorization) and in Afghanistan (which did get authorization).

b) The ROC is a separate legal entity.

I get that this is a complicated issue, but I don’t think I am “misreading” historical documents when I write that 1) the U.S. recognizes the PRC as the government of China and that the U.S. accepts that Taiwan is part of China, and 2) Japan recognizes the PRC as the government of China (see the 1972 Joint Communique), and Japan accepts that Taiwan is a part of China. Sure, neither country recognizes that Taiwan is a part of the PRC, but both the U.S. and Japan have made clear that China is a single legal entity that includes Taiwan, and that the PRC is the sole government in charge of this entity. This is the difference between governments and states.

The U.S. side declared: The United States acknowledges that all Chinese on either side of the Taiwan Strait maintain there is but one China and that Taiwan is a part of China. The United States Government does not challenge that position. (emphasis added).

We can futz all we want with this language, but let’s go with the most natural reading. The U.S. does not challenge the view that Taiwan is part of China (held by “all Chinese” including those in the PRC). It has never in subsequent years stated otherwise. Sure, the people in Taiwan are changing their minds on this, as Thim argues, but that doesn’t matter. What matters is that the U.S. did not “challenge” this view. Moreover, the U.S. has never suggested it has departed from its “one China” position. Now, the U.S. is not bound in any legal sense to the “one China” view, but its stated policy has been consistent: It will not oppose or challenge the PRC’s view that China is part of Taiwan.

There is not much difference in the Japan-China Communique:

The Government of the People’s Republic of China reiterates that Taiwan is an inalienable part of the territory of the People’s Republic of China. The Government of Japan fully understands and respects this stand of the Government of the People’s Republic of China, and it firmly maintains its stand under Article 8 of the Potsdam Proclamation.

Sure, it is possible to read this as saying Japan merely respects the PRC’s view. And it is true that Article 8 of the Potsdam Declaration incorporates the Cairo Declaration reference to Formosa as one of the territories to be returned to the “Republic of China.” But is it really the most plausible reading of this language that Japan’s acceptance of the Potsdam and Cairo Declarations means that Japan thinks only the ROC (rather than the PRC) has a sovereign claim to Taiwan? Since Japan has declared the PRC is the “sole legal government of China,” isn’t it more likely that Japan has acquiesced in the view that Taiwan is part of China? And what exactly in Japan’s subsequent practice has suggested that it holds the view that only the ROC has sovereign rights over Taiwan? Again, Japan is not “bound” in a legal sense to this view, but the point is that this is the current policy of the Japanese government. At present, Japan also does not disagree with the PRC’s “one-China” formulation.

To put it another way, there is a reason why neither the U.S. nor Japan (nor almost anyone else) have diplomatic relations with Taiwan and go to ridiculous lengths to avoid directly meeting with the government in Taiwan (officially). Neither country recognizes the ROC as the legal government of “China.” Nor do they recognize the ROC as the legal government of a state called “Taiwan.”

It is worth responding here to Michael Thim’s view that the ROC might be a state because it is recognized by 21 governments. That’s all very well and good, and El Salvador is free to send troops I suppose. But for the U.S. and Japan, acquiescence in the one China policy remains the governing policy.

As a footnote, I should add that I never meant to argue that the right of self and “collective defense” only applies to UN members, although I think the UN Charter is phrased in a way that could support this argument. My only point is that as UN members, the U.S. and Japan seem to have a legal obligation to limit their collective defense to “UN members.” But even without this odd language, customary international law does not typically allow states to invoke “collective defense rights” for non-states.

3) Consequences of My Legal Analysis

My main point in my original post was to highlight the increasing irrelevance of Article 51 of the UN Charter to decisions by major powers on whether to use military force. (See e.g, U.S. in Kosovo and Iraq, Russia in Crimea and Ukraine). This was a post not just about Taiwan, but about the world and international law in general.

Part of the problem here is that Taiwan advocates often have a hard time dividing their policy analysis from their legal analysis. Other Taiwan advocates, like Michael Turton, seem to simply want to discredit my views by mischaracterizing my legal analysis as supporting the “PRC’s murder of Taiwanese.” None of this is to Taiwan’s benefit, in my view.

Rather, it is important to keep law and policy separate as much as possible, and this is for the benefit of Taiwan. Taiwan’s leaders and people should not be blindsided by the strength of legal arguments that will surely be raised by China. Even worse for Taiwan, I guarantee that these arguments will be raised by anti-war and/or pro-China folks in Japan, the U.S. and in the U.S. Congress if (God forbid) any China-Taiwan conflict arises. If Taiwan’s advocates simply tell themselves that R2P and a tortured reading of the Cairo Declaration will save the day, they will convince each other, but almost no one else.

Instead, I think Taiwan should recognize the weaknesses of its legal position, and prepare accordingly.

Oddly, this analysis suggests it would be safer from a legal perspective for Taiwan to declare independence, since that would protect it from this legal problem I’ve identified.

Of course, that legal position would probably be the least safe from a policy perspective, since it would most likely spark a Chinese attack. But Taiwan independence folks could actually argue that such a declaration would offer Taiwan a more sustainable long-term security solution since Taiwan would then have the opportunity to invoke international law. Since I don’t think international law helps Taiwan very much in this area, even as an independent state, I doubt this is the right way to go. But it certainly is an important reason to consider independence in a more favorable way.

Taiwan’s leaders should take a clear-eyed look around them and realize that existing international law governing the use of force generally hurts their interests and security. So it should downplay the legal arguments, and focus instead on the moral and strategic reasons why other nations (e.g. the U.S. and Japan) should help Taiwan. (It should also invest more in its air force and navy, but that’s another issue).

The decision of whether to defend Taiwan should not depend on workarounds of the UN Charter. I think Taiwan is worth protecting, but it is important to recognize that the law is not on Taiwan’s side.